Choice of Law for Equity
The foundation of equity jurisprudence in the regulation of the conscience assumes the universality of certain values. On the other hand, the starting point in choice of law analysis is the fundamental assumption of the pluralism of legal principles. What happens when these two assumptions meet head-on? What law applies when a litigant invokes the equitable principles founded on the equitable jurisdiction of the court of the forum, or the analogous principles of a foreign legal system? This paper will address this question in three steps. First, it will argue that the invocation of the equitable jurisdiction of the court should not bypass choice of law analysis. Secondly, it will argue that the invocation of the equitable jurisdiction does not call for the use of distinctive choice of law methodologies. Thirdly, it will argue that issues involving equitable or analogous principles (whether of the court of the forum or a foreign country) calling for choice of law analysis can be satisfactorily analysed under the classical choice of law methodology: that there is sufficient flexibility in the techniques of characterisation, selection of connecting factor, application of foreign law, and exclusion of foreign law, to deal with choice of law problems involving the application of equitable or analogous principles. It will be argued that the distinction in domestic law between common law and equity should play a minimal role in choice of law analysis.
Fusion: The Interaction of Common Law and Equity in Commercial Law
YEO, Tiong Min.
Choice of Law for Equity. (2004). Fusion: The Interaction of Common Law and Equity in Commercial Law. 21. Research Collection School Of Law.
Available at: http://ink.library.smu.edu.sg/sol_research/446